EXHIBIT No. 10.1
TGT PIPELINE, LLC
$300,000,000
5.50% Notes due 2017
PURCHASE AGREEMENT
January 12, 2005
Citigroup Global Markets Inc.
Lehman Brothers Inc.
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
TGT Pipeline, LLC, a Delaware limited
liability company (“ Issuer ”), proposes to
issue and sell to the several Initial Purchasers named in
Schedule 1 hereto (the “ Initial Purchasers
”) $300,000,000 in aggregate principal amount of its 5.50%
Notes due 2017 (the Notes ”), pursuant to the terms of
an indenture (the “ Indenture ”), to be dated as
of January 18, 2005, between the Issuer and The Bank of New York,
as trustee (the “ Trustee ”).
The Notes will be offered and sold to you
pursuant to an exemption from the registration requirements under
the Securities Act of 1933, as amended (the “ Securities
Act ”). The Issuer has prepared a preliminary
offering memorandum, dated January 12, 2005 (as amended or
supplemented and including any and all information incorporated by
reference therein, the “ Preliminary Offering
Memorandum ”), and will prepare a final offering
memorandum (as amended or supplemented and including any and all
information incorporated by reference therein, the “
Offering Memorandum ”), to be dated January 12, 2005,
relating to the Issuer and the Notes. Unless stated to the
contrary, any references herein to “amend,”
“amendment” or “supplement” with respect to
the Offering Memorandum shall be deemed to include any information
filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act” ), after the date hereof which is
incorporated by reference therein.
Upon original issuance thereof, and until
such time as the same is no longer required under the applicable
requirements of the Securities Act, the Notes (and all securities
issued in exchange therefor or in substitution therefor) shall bear
substantially the following legend:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
(1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN “OFFSHORE TRANSACTION”
PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
“RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO
A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A INSIDE THE
UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE
AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND
DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,”
“UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
You have advised the Issuer that you will
make offers and sales (the “ Exempt Resales ”)
of the Notes purchased hereunder on the terms set forth in the
Offering Memorandum solely to (i) persons whom you reasonably
believe to be “qualified institutional buyers” as
defined in Rule 144A under the Securities Act (“ QIBs
”) and (ii) outside the United States to persons other than
U.S. Persons in offshore transactions meeting the requirements of
Regulation S under the Securities Act (“ Regulation S
”) (such persons specified in clauses (i) and (ii) being
referred to herein as the “ Eligible Purchasers
”). As used herein, the terms “offshore
transaction,” “United States” and “U.S.
person” have the respective meanings given to them in
Regulation S. You will offer the Notes to Eligible Purchasers
initially at a price equal to 99.667% of the principal amount
thereof. Thereafter, the offering price may be changed at any
time without notice.
Holders (including subsequent
transferees) of the Notes will have the registration rights set
forth in the registration rights agreement (the “
Registration Rights Agreement ”) among the Issuer and
the Initial Purchasers, to be dated as of the Closing Date (as
defined below), in the form of Exhibit A hereto, for so long
as such Notes constitute “ Transfer Restricted
Securities ” (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement,
the Issuer will agree to file with the Securities and Exchange
Commission (the “ Commission ”) under the
circumstances set forth therein, (i) a registration statement under
the Securities Act (the “ Exchange Offer Registration
Statement ”) relating to a separate series of the
Issuer’s 5.50% Notes due 2017 with substantially identical
terms to the Notes (except for transfer restrictions) (the “
Exchange Notes ”) to be offered in exchange for the
Notes (such offer to exchange being referred to as the “
Registered Exchange Offer ”) and (ii) if required by
the terms of the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Securities
Act (the “ Shelf Registration Statement ” and,
together with the Exchange Offer Registration Statement, the
“Registration Statements” ) relating to the
resale by certain holders of the Notes, and to use its reasonable
best efforts to cause such Registration Statements to be declared
effective. This Agreement, the Notes, the Exchange Notes, the
Indenture and the Registration Rights Agreement are hereinafter
referred to collectively as the “ Operative Documents
.” This is to confirm the agreements concerning the
purchase of the Notes from the Issuer by the Initial
Purchasers.
SECTION 1.
Payment
and Delivery.
(a) Payment for the Notes shall be
made by wire transfer of immediately available funds to accounts
designated by the Issuer at the time and place set forth herein,
upon delivery to the Initial Purchasers of Notes in amounts set
forth opposite each Initial Purchaser’s name in Schedule
1 hereto. The time and date of such payment and delivery
with respect to the Notes are herein referred to as the “
Closing Date .” Each Initial Purchaser will
purchase such aggregate principal amount of Notes at an aggregate
purchase price equal to 98.992% of the principal amount thereof
(the “ Purchase Price ”). The obligation of the
Issuer to sell the Notes and of the Initial Purchasers to purchase
the
Notes are conditioned on the consummation
of the offering of the Notes and of the offering by the subsidiary
of the Issuer, Gulf South Pipeline Company, LP, of its $275,000,000
aggregate principal amount of 5.05% Notes due 2015, on the Closing
Date.
(b)
Delivery of and payment
for the Notes shall be made at the offices of Weil, Gotshal &
Manges LLP, 767 Fifth Avenue, New York, New York 10153 or at such
other date or place as shall be determined by agreement between
Citigroup Global Markets Inc. and the Issuer. The Closing
Date shall be 9:00 A.M., New York City time, on the third full
business day following the date of this Agreement or at such other
date as shall be determined by agreement between Citigroup Global
Markets Inc. and the Issuer.
(c)
On the Closing Date, one
or more Notes in global form, registered in the name of Cede &
Co., as nominee of The Depository Trust Company (“ DTC
”), having an aggregate principal amount corresponding to the
aggregate principal amount of Notes sold pursuant to Exempt Resales
(collectively, the “ Global Notes ”), shall be
delivered by the Issuer to the Initial Purchasers against payment
by the Initial Purchasers of the purchase price thereof. The
Global Notes in definitive form shall be made available to the
Initial Purchasers for inspection not later than 2:00 p.m. on the
business day prior to the Closing Date.
SECTION 2.
Certain
Covenants of the Issuer . The Issuer agrees:
(a)
To furnish to you,
without charge, as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments or
supplements thereto, as you may reasonably request. The
Issuer consents to the use of the Preliminary Offering Memorandum
and the Offering Memorandum, and any amendments and supplements
thereto required pursuant to this Agreement, by you in connection
with the Exempt Resales that are in compliance with this
Agreement.
(b)
Before amending or
supplementing the Offering Memorandum (including by way of
incorporation by reference of reports filed under the Exchange
Act), during such period as in the opinion of counsel to the
Initial Purchasers the Offering Memorandum is required by law to be
delivered in connection with Exempt Resales and in connection with
market-making activities of the Initial Purchasers for so long as
any Notes are outstanding, to furnish the Initial Purchasers a copy
of each such proposed amendment or supplement and to effect no such
proposed amendment or supplement to which the Initial Purchasers
reasonably object in writing within a reasonable time after being
furnished a copy thereof.
(c)
If, in connection with
any Exempt Resales or market-making transactions after the date of
this Agreement and prior to the consummation of the Registered
Exchange Offer, any event shall occur that, in the judgment of the
Issuer or in your judgment or the judgment of counsel to you, makes
any statement of a material fact in the Offering Memorandum untrue
or that requires the making of any additions to or changes in the
Offering Memorandum in order to make the statements in the Offering
Memorandum, in the light of the circumstances at the time that the
Offering
Memorandum is delivered to prospective
Eligible Purchasers, not misleading, or if it is necessary to amend
or supplement the Offering Memorandum to comply with applicable
law, the Issuer will promptly notify you of any such event coming
to the attention of the Issuer and prepare an appropriate amendment
or supplement to the Offering Memorandum so that, at the time that
the Offering Memorandum is delivered to prospective Eligible
Purchasers, (i) the statements in the Offering Memorandum as
amended or supplemented, in the light of the circumstances under
which they were made, will not be misleading and (ii) the Offering
Memorandum will comply with applicable law.
(d) To endeavor to qualify the
Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Initial Purchasers shall reasonably
request and to pay all expenses (including fees and disbursements
of counsel) in connection therewith and the determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as the Initial Purchasers may designate.
(e) Except as contemplated in the
Registration Rights Agreement, not to sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) that would be
integrated with the sale of the Notes in a manner that would
require the registration under the Securities Act of the sale to
you or the Eligible Purchasers of the Notes.
(f) Not to, and to not permit any
of its affiliates or any person acting on its or their behalf to,
(i) resell any Notes that have been acquired by any of them; or
(ii) engage in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with
the offering of the Notes.
(g) Not to, and to not permit any
of its affiliates or any person acting on its or their behalf to,
engage in any directed selling efforts within the meaning of Rule
902(b) of Regulation S with respect to the Notes, and to, and
require its affiliates or any person acting on their behalf to,
comply with the offering restrictions requirements of Regulation S
in connection with the offering of the Notes outside of the United
States.
(h) Not to, and to not permit any
of its subsidiaries or any person acting on its or their behalf to,
take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the Notes to facilitate the sale or resale of the
Notes.
(i) For so long as any Notes
remain outstanding and during any period in which the Issuer is not
subject to Section 13 or 15(d) of the Exchange Act, to make
available to any registered holder or beneficial owner of Notes in
connection with any sale thereof and any prospective purchaser of
Notes from such registered holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities
Act.
SECTION 3.
Reimbursement of Initial Purchasers’ Expenses.
If this Agreement shall be terminated by the Initial
Purchasers or any of them, because of any failure or
refusal on the part of the Issuer to
comply with the terms or to fulfill any of the conditions of this
Agreement in any material respect, or if for any reason the Issuer
shall be unable to perform its obligations under this Agreement in
any material respect, the Issuer agrees to reimburse the Initial
Purchasers or such Initial Purchasers as have so terminated this
Agreement, with respect to itself, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably
incurred by such Initial Purchasers in connection with the
Notes.
SECTION 4.
Certain
Covenants, Representations and Warranties of the Initial
Purchasers . Each of the Initial Purchasers, severally
and not jointly, represents and warrants to, and agrees with, the
Issuer, that:
(a)
Such Initial Purchaser is
a QIB with such knowledge and experience in financial and business
matters as are necessary in order to evaluate the merits and risks
of an investment in the Notes.
(b)
Such Initial Purchaser
(i) is not acquiring the Notes with a view to any distribution
thereof or with any present intention of offering or selling any of
the Notes, in either case, in a transaction that would violate the
Securities Act or any state securities laws or any other applicable
jurisdiction; (ii) in connection with the Exempt Resales, will
solicit offers to buy the Notes only from, and will offer to sell
the Notes only to, Eligible Purchasers in accordance with this
Agreement and on the terms contemplated by the Offering Memorandum;
and (iii) will not offer or sell the Notes, nor has it offered or
sold the Notes by, or otherwise engaged in, any form of general
solicitation in connection with the offering of the
Notes.
(c)
Each Initial Purchaser
represents that it has not offered, sold or delivered the Notes,
and will not offer, sell or deliver the Notes (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering of the Notes and the
Closing Date (such period, the “ Distribution Compliance
Period ”), within the United States or to, or for the
account or benefit of U.S. persons, except in accordance with Rule
144A under the Securities Act. Accordingly, such Initial
Purchaser represents and agrees that neither it, its affiliates nor
any persons acting on its behalf have engaged or will engage in any
directed selling efforts within the meaning of Rule 902(c) of
Regulation S with respect to the Notes, and its affiliates and all
persons acting on its behalf have complied and will comply with the
offering restrictions requirements of Regulation S.
(d)
Such Initial Purchaser
agrees that, at or prior to confirmation of a sale of Notes (other
than a sale pursuant to Rule 144A), it will have sent to each
distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Notes from them during the
Distribution Compliance Period a confirmation or notice
substantially to the following effect:
“The Notes covered hereby have not
been registered under the Securities Act of 1933 (the
“Securities Act”) and may not be offered and sold
within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the
later of the commencement of the offering
or the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act,
and in connection with any subsequent sale by you of the Notes
covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving a
selling concession, fee or other remuneration, you must deliver a
notice substantially to the foregoing effect. Terms used
above have the meanings assigned to them in Regulation
S.”
(e)
Such Initial Purchaser
(i) has not offered or sold, and, prior to the six months after the
date of the issue of the Notes, will not offer or sell, any Notes
to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for purposes of
their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (ii) has complied with and will comply
with all applicable provisions of the Financial Services and
Markets Act 2000 (the “FSMA” ) with respect to
anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom, and (iii) has only communicated or
caused to be communicated and will only communicate and cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of any Notes in
circumstances in which Section 21(1) of the FSMA would not apply to
the Issuer.
Such
Initial Purchaser understands that the Issuer and, for purposes of
the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Issuer and counsel to the Initial Purchasers will
rely upon the accuracy and truth of the foregoing representations
and hereby consents to such reliance.
The terms used in this Section 4 that
have meanings assigned to them in Regulation S are used herein as
so defined.
SECTION 5.
Conditions of Initial Purchasers’ Obligations .
The several obligations of the Initial Purchasers to purchase
and pay for any issue of Initial Purchasers’ Notes hereunder
are subject to the following conditions:
(a) That, at the Closing Date, the
Issuer shall furnish to the Initial Purchasers an opinion of
Dickstein Shapiro Morin & Oshinsky LLP, as special counsel to
the Issuer (or of such other counsel to the Issuer, including
in-house counsel, as is reasonably acceptable to the Initial
Purchasers) dated the Closing Date, in substantially the forms
attached hereto as Exhibit B-1 and Exhibit B-2
.
(b) That, at the Closing Date, the
Initial Purchasers shall receive an opinion of Weil, Gotshal &
Manges LLP, counsel for the Initial Purchasers, dated the Closing
Date, with respect to the issuance and sale of the Notes, the
Offering Memorandum and other related matters as the Initial
Purchasers may reasonably require.
(c) At the time of execution of
this Agreement, the Initial Purchasers shall have received from
each of Ernst & Young LLP and Deloitte & Touche LLP, a
letter, in form and substance satisfactory to the Initial
Purchasers, addressed to the Initial Purchasers and dated the date
hereof (i) confirming that they are an independent registered
public accounting firm within the meaning of Section 103(a)(3)(B)
of the Sarbanes-Oxley Act of 2002 and are in compliance with the
applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Offering Memorandum, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to
initial purchasers.
(d) With respect to the letter of
each of Ernst & Young LLP and Deloitte & Touche LLP,
referred to in the preceding paragraph and delivered to the Initial
Purchasers concurrently with the execution of this Agreement (each
such letter referred to as the “ initial letter
”), the Initial Purchasers shall have received a letter (the
“ bring-down letter ”) of each of such
accountants, addressed to the Initial Purchasers and dated as of
the Closing Date (i) confirming that they are an independent
registered public accounting firm within the meaning of Section
103(a)(3)(B) of the Sarbanes-Oxley Act of 2002 and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a
date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial
letter.
(e) That, at the Closing Date, the
Issuer shall have furnished to the Initial Purchasers a certificate
dated the Closing Date and signed by an officer of the Issuer, to
the effect set forth below. The officer signing and
delivering such certificate may rely upon the best of his knowledge
as to proceedings threatened.
(A)
the representations and
warranties of the Issuer contained herein are true and correct in
all material respects as if on and as of the Closing Date, and the
Issuer has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied thereunder, to
the extent a party thereto, at or prior to the Closing
Date;
(B) The issuance and sale of the Notes by
the Issuer hereunder has not been enjoined (temporarily or
permanently) by any court or governmental body or
agency;
(C) Subsequent to the execution and
delivery of this Agreement and prior to the Closing Date, there
shall not have occurred any
downgrading, nor shall any notice have
been given of (A) any intended or potential downgrading or (B) any
review for a possible change that does not indicate the direction
of a possible change, in the rating accorded any of the
Issuer’s or any of its subsidiaries securities by any
“nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule
436(g)(2) under the Act; and
(D) there has not occurred any material
adverse change, or any development which could reasonably be
expected to result in a prospective material adverse change, in the
financial condition, or in the earnings, business or operations, of
the Issuer and its subsidiaries, taken as a whole, from that set
forth in or incorporated by reference into the Offering
Memorandum.
(f) The Issuer and the Initial
Purchasers shall have entered into the Registration Rights
Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(g) That the Issuer shall have
performed in all material respects its obligations under this
Agreement as are to be performed by the terms hereof at or before
the time of purchase.
(h) The Offering Memorandum shall
have been printed and copies distributed to you not later than 9:00
A.M., New York City time, on January 18, 2005, or at such later
date and time as you may approve in writing, and no stop order
suspending the qualification or exemption from qualification of the
Notes in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
All opinions, letters, evidence and
certificates mentioned above or elsewhere in this Agreement shall
be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel
for the Initial Purchasers.
SECTION 6.
Defaulting Initial Purchasers. If any Initial
Purchaser or Initial Purchasers shall default in its or their
obligation to take up and pay for the Notes to be purchased by it
or them h
